Survey on Rules on Loss of Nationality in International Treaties and ...

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14 RENÉ DE GROOT Furthermore, Austria retained the right to deprive a national of its nationality if such a person, being in the service of a foreign State, conducts himself in a manner that is seriously prejudicial to the interests or the reputation of the Republic of Austria. Concerning Article 7 in conjunction with Article 7, paragraph 1, lit (c), Austria retained the right to deprive a national of its nationality if such person voluntarily enters the military service of a foreign State. Concerning Article 7 in conjunction with Article 7, paragraph 1, lit (f), Austria retained the right to deprive a national of its nationality whenever it has been ascertained that the conditions leading to the acquisition of nationality ex lege, as defined by its internal law, are not fulfilled any more. Germany declared that loss of German nationality ex lege may, on the basis of the "option provision" under Section 29 of the Nationality Act [Staatsangehörigkeitsgesetz-StAG] (opting for either German or a foreign nationality upon coming of age), be effected in the case of a person having acquired German nationality by virtue of having been born within Germany (jus soli) in addition to a foreign nationality. Germany also declared that loss of nationality may also occur if, upon a person's coming of age, it is established that the requirements governing acquisition of German nationality were not met. However, the German law has been modified since this reservation was made and on this point is in accordance with Article 7 ECN. Therefore, the reservation could be taken back. Germany declared also that loss of German nationality can occur in the case of an adult being adopted. Two Member States of the European Union – Bulgaria and Hungary – made reservations on Articles 11 and 12 ECN, which oblige States to give reasons for inter alia decisions on loss of nationality and to provide for judicial review of such decisions. Denmark made also a reservation on Article 12, which is practically only relevant for rejections of applications for naturalisation. Recently, the Council of Europe adopted additional rules that should contribute to an enhanced reduction in cases of statelessness. A Committee of Experts appointed by the Secretary General worked in 2008-09 on a Recommendation on the Nationality of Children, which was adopted by the Committee of Ministers on 9 December 2009. 55 The Secretary General asked inter alia to pay special attention to statelessness issues. Recommendation 2009/13 contains 23 principles, 56 several of which have relevancy for grounds for loss of nationality. Principle 10 recommends providing that the revocation or annulment of an adoption will not cause the loss of nationality acquired by this adoption if statelessness would be the consequence. Principle 15 takes an additional step by recommending that the nationality acquired by the adoption should not be lost in case of revocation or annulment if the child is lawfully and habitually resident on the territory for a period of more than five years. Principle 18 deals with the nationality position of children who were treated in good faith as nationals. After a specific period of time to be fixed by domestic law, they should not be declared as not having acquired their nationality. Finally, Principle 22 is also relevant: States should provide that children who have lost their nationality have the right to apply for recovery of it before the age of majority, or within at least three years of reaching the age of majority. 55 The complete text of Recommendation 2009/13 can be consulted at https://wcd.coe.int/ViewDoc.jsp?id=1563529&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021& BackColorLogged=F5D383; the text of the Explanatory Memorandum can be accessed at https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=CM(2009)163&Language=lanEnglish&Ver=original&Site=CM&BackColor Internet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383 (both sites accessed 1 July 2013). 56 On Recommendation 2009/13, see Fransman (2011), pp. 56-58 and De Groot (2011b).
SURVEY ON RULES ON LOSS OF NATIONALITY IN INTERNATIONAL TREATIES AND CASE LAW 15 2.13 Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) 57 The Convention on the Rights of Persons with Disabilities includes rules on nationality in its Article 18. The Convention was opened for signature on 30 March 2007 and entered into force on 3 May 2008. In July 2012, 132 States were party to the Convention. Of the Member States of the European Union, 26 are bound by this Convention. 58 Ireland and the Netherlands signed the Convention in 2007, but have not yet acceded. Art. 18 reads: 1. States Parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities: a) have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability; b) are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement; c) are free to leave any country, including their own; d) are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country. 2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents. The Convention mainly repeats principles already enshrined in other international instruments. Its relevancy would appear to be that health requirements for naturalisation are problematic in light of Article 18(1)(a). Its relevance consists in its claim for compensation for persons with disabilities in so far as this is necessary for their fulfilment of the requirements for acquisition of nationality, in particular by naturalisation. In relation to, for instance, language requirement facilities, aid and special education may be needed and requirements that cannot be met, regardless of special facilities, must be waived. 2.14 European Convention on the Avoidance of Statelessness in Relation to State Succession (Strasbourg, 19 May 2006). 59 The European Convention on the Avoidance of Statelessness in Relation to State Succession has been ratified by six States at the time of writing. Of the Member States of the European Union, three are bound by this Convention. 60 Due to the specific purpose of this Convention in the context of State succession, a description of the rules contained in this international instrument would go beyond the scope of this paper. 57 UNTS 2515, 3. 58 See http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en (accessed 1 July 2013). 59 CETS No. 200. 60 Austria, Hungary and the Netherlands (http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT= 200&CM=1&DF=07/02/2012&CL=ENG) (accessed 1 July 2013).
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